MISC 06-333587

April 22, 2011

PLYMOUTH, ss.

Cutler, J.

DECISION

In this action, Plaintiff Dew Development, LLC (Dew Development) appeals, pursuant to G.L. c. 41, § 81BB, the November 13, 2006 decision of the Town of Bridgewater Planning Board (the Board) disapproving the Plaintiffs application to develop a seven-lot subdivision, to be known as Dew Drop Estates. [Note 1] The Board recited three reasons for denying subdivision approval. In September 2007, the Plaintiff filed a motion for summary judgment, and the Defendants filed oppositions thereto. On January 11, 2008, the Court (Lombardi, J.) issued an Order allowing summary judgment in the Plaintiffs favor as to two of the three reasons for disapproval recited in the Boards Decision. The Judge, however, denied summary judgment to both parties as to the validity of the third reason, leaving for trial the single issue of whether the proposed subdivision plan complies with the minimum sight distance requirement contained in the Bridgewater Subdivision Rules and Regulations.

The trial on the remaining issue was held on August 3, 2010. At trial, four (4) witnesses testified: Andrew Dyer, a Principal of Dew Development; Chris Gallagher, a licensed professional engineer; Paul Sullivan, a former Board member; and Lawrence Silva, a licensed professional civil engineer. Mr. Gallagher and Mr. Silva were each qualified as experts. The following seven (7) agreed exhibits were admitted into evidence at the commencement of the trial: [Note 2]

1. The letter to the Bridgewater Town Clerk from the Board, dated November 13, 2006, reporting that a motion to conditionally approve the Dew Development did not carry, and reciting three reasons for denial (the Decision).

Additionally, a letter from Nicholas A. Lanney, P.E., L.S.P, Principal of HML Associates, dated January 9, 2006 and addressed to the Board, was admitted without objection during the course of the trial, as Exhibit 8.

Following the trial, the parties were given the opportunity to submit post-trial memoranda and/or proposed findings and rulings. The Plaintiff submitted its Proposed Findings and Rulings on September 14, 2010. The Defendants did not file any post-trial papers.

DISCUSSION

Although two of the three reasons given by the Board for disapproval of the Dew Drop Estates Subdivision were determined to be invalid at the summary judgment stage, if the remaining reason validly supports disapproval, the Board is entitled to have its decision upheld. See Loring Hills Development Trust v. Planning Bd. of Salem, 374 Mass. 345 , 352 (1978) (valid single reason supporting denial is sufficient to uphold boards decision). Here, the remaining reason is No. 2 in the Decision, which states:

Rule IV.C.4 requires 200-foot minimum sight distance on all proposed residential and sub-collector streets. Summer Street is defined as a collector street, Section II.A, and the plan provides for only 140 feet of sight distance between the proposed road and the intersection of Charles and Summer Street.

The Plaintiff argues that the Board acted improperly when it denied the Plan on the basis of inadequate sight distance, because the referenced Section IV.C.4 applies only as to the sight distance measured along the proposed subdivision street itself and not to the sight distance measured from the proposed street along an existing, intersecting street, as the Board applied it. The Plaintiff contends that, because the sight distance measured along the proposed subdivision street is 200 feet, the Plan complies with the Section IV.C.4 minimum sight distance requirement, and is entitled to approval.

If the Plaintiffs interpretation is correct, the evidence shows that the Plan conforms to the minimum sight distance regulation and, therefore, the Boards decision must be invalidated. If the Board is correct, the evidence shows that the design of the proposed subdivision does not conform to Section IV.C.4 and, therefore, the Boards Decision will be upheld. As discussed below, I find that the Board acted reasonably, and within its authority, in denying the Plaintiffs subdivision application based on the Plans noncompliance with the minimum required sight distance regulation.

In a G.L. c. 41, § 81BB appeal, the trial court conducts a hearing de novo, finds the relevant facts and, on the basis of the facts found, determines the validity of the planning boards decision. See, e.g., Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 , 173 (1977). In reviewing a decision disapproving a subdivision, the trial judges determination is confined to the reasons for disapproval stated by the planning board. Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306 , 307 (1976). It is the intent of the subdivision control law that a subdivision plan shall receive planning board approval if the plan conforms to both the board of health recommendations and to the planning boards reasonable rules and regulations pertaining to the subdivision of land. G.L. c. 41, § 81U. The burden of proof is on the plaintiff/applicant to show that a planning board exceeded its authority in disapproving the subdivision plan. Wine v. Planning Bd. of Newburyport, 74 Mass. App. Ct. 521 , 526 (2009); see also Selectmen v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975).

Based upon the parties pretrial stipulations, the agreed upon trial exhibits, and the testimony of the four (4) witnesses at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I conclude that the sight distance requirement in Section IV.C.4 of the Regulations is not limited to the distance measured along the proposed street. I further find that that the Plaintiff has failed to establish that the sight distance shown on the Plan, measured southwesterly from the intersection of the proposed subdivision street, along the intersecting existing street, meets the 200-foot minimum sight distance requirement contained in Section IV.C.4. Accordingly, the Boards decision denying subdivision approval was based on a valid ground and must be upheld.

The Minimum Sight Distance Regulation

The referenced sight distance regulation is found in Section IV of the Regulations, entitled General Requirements and Design Standards. Section IV.C.4, entitled, Right of Way Widths and Grades states that [o]n all classifications of streets the following characteristics shall be the minimum acceptable  (emphasis added). Under the characteristic labeled Sight Distance (ft) a distance of 200 (two-hundred feet) is listed for each of the three street categories: collector, subcollector, and residential. The Plaintiff argues that the design characteristics, including minimum sight distance, are necessarily applicable only to the design of the proposed subdivision streets since the developer has no control over the design characteristics of abutting streets. Even so, however, this would not mean that the sight distance requirement for the design of proposed streets relates solely to the sight distance measured on the proposed street. The requirement may equally be applied in relation to the sight distance measured from the proposed street at its intersection with another street, including an existing street.

The Regulations do not define the term sight distance and do not otherwise explain how sight distance is measured. Although Section VI.C of the Regulations states that
[f]or matters that may arise during subdivision procedures that are not covered by these regulations the following were accepted as standards in their applicable portions: Suggested Land Subdivision Regulations H.H.F.A.: [sic] Standard Specifications for Highways and Bridges Massachusetts Department of Public Works; each as amended or up-dated from time to time.
However, neither of these referenced documents was produced at trial. Instead, the Plaintiff asserts that the definition promulgated by the American Association of State Highway and Transportation Officials (AASHTO) should control here. According to the testimony of the Plaintiffs engineer, Chris Gallagher, AASHTO defines sight distance as the length of roadway ahead visible to the driver, and provides that the minimum sight distance should be sufficiently long to enable a vehicle traveling at or near the designated speed limit to stop before reaching a stationary object in its path. Given that the Regulations do not reference AASHTO standards with respect to interpretation or applicability of the street design requirements, but do reference two other documents to be used in determining matters not included in the Regulations, I decline to import the AASHTO definition into the Regulations or to interpret Section IV.C.4 on the basis of AASHTO standards. However, it should be noted that application of the AASHTO sight distance definition and standard would, in any event, be entirely consistent with the Boards application of Section IV.C.4 to the sight distance as measured both on proposed subdivision streets, and from the intersection of proposed streets with any other street.

Subdivision regulations must be reasonably definite and carefully drafted so that developers may know in advance what is or may be required of them, [Note 4] Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329 (1962), but there must be sufficient leeway to permit determinations based upon the particulars of each subdivision. North Landers Corporation v. Planning Bd. of Falmouth, 382 Mass. 432 (1981). The interpretation an administrative body gives to its own rule is entitled to deference by a court. Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553 , 560 (1983); Manning v. Boston Redevelopment Authority, 400 Mass. 444 , 453 (1987). Here, I find that the manner in which the Board interpreted and applied its sight distance regulation is completely reasonable within the context of the other street design provisions of the Regulations. It is also consistent with the exercise of subdivision control with due regard for reducing danger to life and limb in the operation of motor vehicles as well as for coordinating the ways in a subdivision with each other and with the public ways in the city or town in which it is located and with ways in neighboring subdivisions. See G.L. c. 41, § 81M (describing the purposes of subdivision control); see also Patelle v. Planning Bd. of Woburn, 20 Mass. App. Ct. 279 , 283-284 (1985) (the subdivision control law is intended to benefit the inhabitants of the city or town primarily and, only secondarily, the lot owners).

The text of Section IV.C.4, alone, is not helpful in determining whether or not the minimum sight distance requirement necessarily relates solely to proposed subdivision streets, or whether it may also be applicable to existing streets abutting or intersecting the proposed subdivision streets. Because Section IV.C.4 does not plainly describe where the sight distance measurements are to be made, it is necessary to review the provision in the context of the Regulations as a whole, and in light of the purposes of the Regulations.

The sight distance requirement is in a subsection of Section IV.C of the Regulations, which provides the street design standards to be used in designing subdivisions. Section IV.C.1, entitled Arrangement, states:

The proposed streets shall be considered in their relation to existing and planned streets . and to public convenience and safety.

(Emphasis added). When the design standards in Section IV.C.4 are read in harmony with this statement, it is entirely reasonable for a subdivision applicant to expect that the design of a proposed subdivision street will be evaluated in relation to existing streets, and that the minimum sight distance requirement, therefore, will include the distance measured along an existing street, on either side of its intersection with a proposed street.

In contrast, I find nothing in the Regulations to support the Plaintiffs narrow interpretation  that the Section IV.C.4 sight distance requirement applies only to the distance as measured along the proposed subdivision street itself. [Note 5] I also reject the Plaintiffs contention that the Section IV.C.2 provision concerning minimum center line offsets of street intersections, is the only applicable provision governing the relationship between existing and proposed streets and that, to the extent that the Regulations are interpreted to require minimum sight distances at intersections of proposed streets and existing streets, it is the 125-foot minimum offset distance in Section IV.C.2 which controls.

Section IV.C.2, entitled Alignment of Streets, provides, in relevant part, that [i]ntersections of residential streets with sub-collector streets with centerline offsets of less than 125 feet should be avoided. The Plaintiff contends that requiring a 200-foot sight distance from intersections is discordant with, and renders meaningless, the Section IV.C.2 requirement. The Plaintiffs logic is flawed. Minimum street offset distances serve a different purpose than minimum sight distance requirements, and there is absolutely nothing in the Regulations to suggest that compliance with the Section IV.C.2 street alignment standards obviates the need for meeting minimum sight distance requirements at the intersection of a proposed street with an existing street.

The fact that the Plan conforms to the minimum street offset requirement is not contested. Indeed, the Boards expert witness, Lawrence Silva agreed that the Plan conforms to the minimum street intersection offset requirement in Section IV.C.2. He further testified to his opinion regarding the desirability of having 125-foot centerline offsets between intersections along a collector street in order to reduce the potential conflicts from turning movements. But Mr. Silva also testified as to his opinion that the minimum sight distance at an intersection and the intersection offset are not the same thing, since the adequacy of sight distance at an intersection is a safety characteristic which should be addressed even where there are no other intersections involved. And he testified that, in designing plans, he measures line of sight from all directions that are affected by or could possibly affect the driver of a car stopped at the intersection. Mr. Silva acknowledged that if he had submitted the Plan, he would have requested a waiver from the sight distance requirement.

The Plan

The intersection sight distances shown on the Plan submitted to the Board contradict the Plaintiffs narrow interpretation of sight distance  that it is only measured along the proposed street itself. Indeed, the Plan fully supports the inference that the engineer who prepared that Plan understood the sight distance requirement as pertaining to the distances from the intersection of the proposed street, along the intersecting, existing street. Sheet 3 of the Plan submitted to the Board for approval includes a Sight Line Plan depicting two sight distance measurements. The measurements are made along an existing street abutting the Subdivision, (Charles Street) from a point at the intersection of the proposed subdivision street with Charles Street. The sight distance line measured northerly from said intersection is noted as being 200 feet. The sight distance line measured southwesterly from said intersection to the intersection, however, is noted as being 140 (full length of street). No other sight distance measurement is indicated on Sheet 3 or elsewhere on the Plan.

The 140-foot distance depicted on Sheet 3 of the Plan is substantially less than the 200-foot minimum sight distance specified in Section IV.C.4. Notably, Sheet 3 contains a statement (as does each of the other Plan sheets) to be signed by Azu O.C. Etoniru, P.E., certifying that the design and content of the Definitive Subdivision Plans conform to the Applicable Rules and Regulations of the Bridgewater Planning Board, except as otherwise noted herein. [Note 6] No exception from the sight distance requirement is noted on the Plan. Moreover, the parties stipulated that the applicant never sought a waiver from the Section IV.C.4 minimum sight distance requirement. [Note 7]

Exhibit 5

To support its claim that the Plan complies with the 200-foot minimum sight distance requirement, the Plaintiff relies, primarily, upon Agreed Trial Exhibit No. 5  a Line of Sight Plan, prepared by E.T. Engineering Enterprises Inc., dated December 1, 2009, and Revised July 27, 2010. The sight distance measurements depicted on Exhibit 5, a plan prepared well after the Boards Decision, differ in several respects from those shown on the Plan disapproved by the Board. While the Plan depicts two sight line distances (both measured along Charles Street from its intersection with the proposed street), Exhibit 5 depicts four sight lines. Again, contrary to the Plaintiffs narrow interpretation of Section IV.C.4, Exhibit 5 depicts both sight distance lines along Charles Street from the proposed street, and a sight distance line measured along the proposed street itself.

The 200-foot line of sight shown on Exhibit 5 is measured along the proposed subdivision street, westerly from approximately station 200 to the intersection of the proposed street with Charles Street. Said Exhibit also depicts the identical 200-foot sight line measured northerly along Charles Street from its intersection with the new subdivision street as is shown on Sheet 3 of the Plan. However, Exhibit 5 does not depict the same southwesterly line as shown on the Plan. Instead, the line of sight measured southwesterly from the intersection of the proposed subdivision street and Charles Street is shown in a different location from that shown on the Plan, and there is no notation of the distance. [Note 8] Additionally, Exhibit 5 depicts a line of sight (also without a notation of distance) measured southerly from the proposed intersection, directly across Lot 9 in the Subdivision, to Summer Street.

Both the Plan and Exhibit 5 were prepared by the same civil engineer, Azu O. Etoniru, and Exhibit 5 contains the same engineers certification statement as appears on Sheet 3 of the Plan, although the certification on Exhibit 5 is signed. Nevertheless, there was no testimony from Mr. Etoniru regarding the two plans he had prepared. Instead, another engineer, Chris Gallagher, was called to testify as the Plaintiffs expert witness. Mr. Gallagher testified as to his interpretation of the information depicted on Exhibit 5, his interpretation of the Regulations, and his professional opinion that the sight distance southerly along Charles Street, from the proposed subdivision street intersection, is a safe stopping sight distance under AASHTO Standards. [Note 9] Mr. Gallagher further testified, on the basis of having designed between fifteen (15) and twenty (20) subdivisions in the Town of Bridgewater, that the Section IV.C.4 minimum sight distance requirement has always been applied solely to the distance as measured along the proposed subdivision street itself. Mr. Gallagher, however, admitted on cross-examination that the sight distance regulation does not specify the manner in which the distance is to be measured. Moreover, he offered no specific examples of previous subdivisions approved in Bridgewater with less than a 200-foot sight distance from the intersection of a proposed street with an existing street.

Mr. Gallaghers testimony as to his own interpretation of the Regulations is largely irrelevant, as the Regulations speak for themselves. Additionally, since he did not testify as to any specific instances in which the Board has applied Section IV.C. 4 solely to the sight distance measured on proposed subdivision streets, I neither credit his testimony concerning the Boards historic interpretation of its Regulations, nor find it relevant. The testimony of Paul Sullivan, a member of the Bridgewater Board of Selectmen, and a former member of Planning Board between April 1993 and April 2002, was likewise too attenuated and too generalized to establish that the sight distance Regulation is applicable only to the distance measured along proposed subdivision streets. [Note 10]

CONCLUSION

Neither the documentary evidence, nor the testimony of the Plaintiffs witnesses, [Note 11] was sufficient to satisfy the Plaintiffs burden to demonstrate that the Plan was in compliance with Section IV.C.4 of the Regulations. Moreover, the Line of Sight Plan on Sheet 3 of the Plan submitted to the Board supports the inference that the engineer who prepared that Plan believed (at that time) that he was required under the Regulations to depict the sight distance measurements from the proposed street, in two directions along the intersecting Charles Street. The later Exhibit 5 plan does not contradict this inference, particularly in view of the lack of any testimony from the engineer who prepared both the Plan and Exhibit 5, to explain the reason for the differences in the two plans. Finally, a plain reading of the Regulations supports the reasonableness of the Boards interpretation of the Section IV.C.4 minimum sight distance requirement. I find, therefore, that the Plaintiff failed to meet its burden to establish that the Plan submitted by the Plaintiff complied with the sight distance requirement set forth in Section IV.C.4 of the Regulations, as cited in reason No. 2 of the Decision.

Accordingly, where the Plan plainly shows less than 200 feet of sight distance in at least one respect, and because the Plaintiff did not request or receive a waiver from the minimum sight distance requirement, this court will not disturb the Boards Decision denying subdivision approval.

Judgment shall enter accordingly.

Judith C. Cutler, Justice

Dated: 22 April 2011

FOOTNOTES

[Note 1] A predecessor in interest to Dew Development submitted a proposed subdivision of the subject property, which was approved, with conditions, by the Board on February 10, 2006. Said Decision was appealed by abutters. At the Case Management Conference, held on May 11, 2006, the subdivision applicants acknowledged a procedural defect in the Boards February 10, 2006 decision, as some Board members voted without having participated in all of the public hearings. See Collins v. Town of Bridgewater, Land Court Case No. 06 MISC. 319440. The parties agreed a remand would be appropriate and, on May 24, 2006, the Court (Lombardi, J.) entered an order annulling the February 2006 decision and remanding the matter to the Board for a new public hearing and decision. It is the Boards decision following that remand which is the subject of the instant appeal.

[Note 2] This list includes exhibits previously submitted in connection with the motion for summary judgment, and which the parties stipulated were to be marked and incorporated by reference for trial.

[Note 3] The parties agreed that the relevant sections of the Regulations have not been changed. Trial Transcript at 5.

[Note 4] The Plaintiff does not claim that the Regulations are vague or ambiguous.

[Note 5] I find no merit in the Plaintiffs contention that the Boards use of the phrase on all proposed streets (emphasis added) in its Decision constituted a waiver of the sight distance requirement. There is no evidence in the record of a conscious waiver of the sight distance requirement, see Meyer v. Planning Board of Westport, 29 Mass. App. Ct. 167 , 170 (1990), and, indeed, it is undisputed that no such waiver was requested by the Plaintiff.

[Note 6] The copy of the Plan submitted into evidence does not contain any signatures or stamps of the design engineer/surveyor. Presumably, the original submitted to the Board did contain such signature and stamp as required under Section III.B.3 of the Regulations.

[Note 7] The Plaintiff has also asserted that a request for a waiver of the sight distance requirement was not necessary, because the sight distance is sufficient under AASHTO standards. Although satisfaction of the AASHTO standards might support the grant of a waiver, there is nothing in the Regulations which imports the AASHTO sight distance standards for use in interpreting or applying Section IV.C.4, and nothing to suggest that said standards may be substituted unilaterally by an applicant.

[Note 9] Mr. Gallagher testified that under AASHTO standards, safe stopping sight distance is based upon the distance a driver can see ahead on the road when traveling at or near the posted speed limit.

[Note 10] Mr. Sullivan testified that Section IV.C.4 was adopted before his tenure on the Board, but that said provision has remained the same. He also testified that, in his experience, the Plan would not necessitate a sight distance waiver.

[Note 11] The testimony of the Plaintiffs other witness, Andrew Dyer, a Principal of Dew Development, did not support the Plaintiffs theory as to how sight distance is measured under the Regulations. Moreover, Mr. Dyer conceded on cross-examination that one could see less than 200 feet looking down Charles Street from the proposed street.